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Artists’ Alert: Library and Archives Canada’s unethical contract presented to Visual Artists

Please note: There is now a new agreement with the Library and Archives Canada.

October 24, 2007

en français

On October 4th, CARFAC and RAAV issued an alert to visual artists across Canada, regarding a contract sent out by Library and Archives Canada (LAC) to several artists whose works are held in their collections. The contract contained unreasonable demands in terms of the parameters of use of those artists’ copyrights. The agreement was met with an instant and organized response from CARFAC and RAAV, and as a result the LAC has stopped using the licences. They say they will review their licensing agreements and create a contract that is more respectful of the artists they work with. CARFAC National asked that they be involved in the writing of the new contract to ensure that fair practice is upheld, and initial meetings have begun to take place.

The LAC contract asks artists to give them an overly vague, broad non-exclusive licence, and not a complete reassignment of the artist’s copyright, as initially suspected. It does, however, mean that if signed, an artist agrees to allow the LAC and any third party contractor to use that copyrighted material in any way they see fit, without further permission or consultation with the artist, and with no payment for use. The artist retains copyright ownership in the work and may use it for other purposes – except with respect to LAC, or the contractors or subcontractors of LAC, which may include anyone from a graphic designer to another government department or exhibiting institution, anywhere in the world. In this case, the licence also applies to the uses made of the image by these people and institutions.

It should also be taken into consideration that this is not an unusual practice or request, or a one-time issue. Many institutions, both within the government and museums that artists work with, use similar licences, and in many cases they state very clearly that they are asking for copyright ownership – not a non-exclusive licence. Unfortunately, this type of request happens far more often than one would think.

If you have been presented with a licence of this sort, contact us – you should not feel alone, and we are here to advise you on your rights. Please also keep in mind that if you are a member of a copyright collective society, like CARCC or SODART, the collectives are legally entitled to negotiate these contracts on your behalf.

Original posting:

Library and Archives Canada is currently contacting a large number of visual artists with the goal of having them sign a contract in which they are asked to cede their copyright to the Canadian government in perpetuity. This request pertains to artworks within the Library and Archives’ collection, and by signing this contract, not only are you signing away your copyright ownership on these works to the Canadian government and even renouncing part of your moral rights, but you will receive no financial compensation.

In other words, by signing this contract, you would authorize the government to reproduce your works in any context they see fit, to exhibit them in public, or to present them on the Internet without paying you copyright royalties. In addition, by renouncing part of your moral rights, as is being requested, you would expose yourself to the possibility of seeing your works modified, distorted or mutilated, depending on the whim of a graphic designer employed by the federal government or a communications agency under contract with the government.

Another atrocious aspect of the contract, as written, is that it would permit the government, which would become legal holder of part of your rights, to authorize educational institutions to present your works in a multitude of contexts. Here again, you would not receive one cent for the use of your work!

The pretext for this is the supposed need, for a specific project, to provide Library and Archives Canada, free of charge, with the right to make certain works that are in their collections available to students, researchers and the general public. The letter asks these artists to sign the contract and to return it as soon as possible – for some, the deadline is October 8th.

WE DO NOT ADVISE YOU TO SIGN THIS CONTRACT, since it allows the federal government to strip you of what rightfully belongs to you.

Library and Archives Canada: One example among many
In the professional visual arts field, there are predators that do not hesitate to appropriate copyright or neglect to respect it. The money made with your copyright, or the money saved at your expense, is the result of tampering with the financial royalties that should go, by right, to creators.

These predators may be government agencies, as is the case with Library and Archives Canada, or public or private presenters, corporate purchasers, or dishonest agents. They may appeal to your generosity, or to your sense of civic duty, or they may threaten you with the loss of an exhibition or a sale.

The myth of “exposure” as justification
One of the main justifications invoked by copyright predators in making this kind of request is to claim that in exchange for your copyrights, they will distribute your works widely and that you will have more exposure, which is good for your career. Artists often sign contracts that are disadvantageous to them in the hope of gaining more visibility. You should not have to pay this price for a future career and it does nothing but harm the rights that should be respected for all artists in the visual arts community. We must act together to defend visual artists’ rights to obtain better socio-economic conditions and show solidarity in our field of practice by supporting the efforts made by our associations, CARFAC and RAAV.

The signature of such a contract negates the efforts made by CARFAC-RAAV and the copyright collectives to ensure that government agencies and public and private presenters respect artists’ copyright.

The benefits of collective copyright management
CARCC is a collective society for copyright management that was founded by CARFAC for the purpose, among others, of enabling visual artists to negotiate with presenters on your behalf. In Quebec, RAAV has similarly formed a copyright collective, SODART, which works in tandem with CARCC.

Because CARCC and SODART are familiar with copyright and act on your behalf, you don’t have to negotiate for yourself the conditions under which you give permission for your works. These collectives represent a large number of artists, and as part of a collective you are able to benefit from equitable treatment. Isolated, you may be at the mercy of abusive practices, and by joining CARCC or SODART you can be sure that your copyright will be respected.

Presenters often first ask artists to either completely or partially waive their copyrights with no financial compensation. All too often, presenters strip artists of their rights with no benefit paid, by asking them to waive their exhibition and reproduction rights in their contracts. However, when a presenter deals with a collective society, permissions for presentation of the works are clearly given under conditions that are much more equitable for artists. In fact, rather than surrendering your rights, a collective society negotiates a user licence that it writes to be adapted to a specific project, under respectful conditions, and in return for payment of royalties.

Along with your art, your copyright is among your most valuable assets. Some of the best sources of income that visual artists have are the sale or rental of their works and their copyright, which, during their lifetime (and their estate, up to fifty years after their death), enables them to collect royalties for the presentation of their artworks. This is a not inconsiderable value, and that is why it is important to protect not only your works but the copyright that is attached to them.

Unless you are a copyright specialist, know the law, and are a very experienced negotiator, wheeling and dealing with your copyright exposes you to many risks, loss of income, and the anxiety and tension that often accompanies this type of transaction.

Entrusting management of your rights to a collective society is thus your best option, and CARCC and SODART were created to enable you to benefit from what, by all rights, is coming to you. CARCC and SODART can offer you the peace of mind that you need to pursue your creative work. Joining a collective also gives you a means of acting collectively against copyright predators. This is worth serious thought.

What to do with the Library and Archives Canada contract
If you have not yet joined CARCC or SODART, thereby allowing them the ability to handle this situation on your behalf, inform the person who sent you the letter and contract that you want more time to think about the agreement. Above all, it is important not to cede your rights without fair financial compensation. As for the moral rights that are attached to all of your works, it is important not to waive them, because you might see your work cropped, improperly manipulated, or used without your consent to convey messages that you may not agree with.

In solidarity,

April Britski, Executive Director, CARFAC National
Christian Bédard, Executive Director, RAAV

For more information, contact:
CARFAC: carfac@carfac.ca, toll-free: 1.866.344.6161
RAAV: christian.bedard@raav.org, 1.514.866.7101
CARCC: carcc@carcc.ca, toll-free: 1.866.502.2722

SODART: sodart@sodart.org, toll-free: 1.866.906.0230

A noter: Il y a maintenant une nouvelle entente avec le Bibliothèque et Archives Canada.